RONALD GRINBLAT v. ROBERT B. SIMON

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0273-17T3

RONALD GRINBLAT,

          Plaintiff-Appellant,

v.

ROBERT B. SIMON and
ELIZABETH M. SIMON,

     Defendants-Respondents.
___________________________

                    Argued October 11, 2018 – Decided October 23, 2018

                    Before Judges Koblitz, Currier, and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Docket No. L-0184-16.

                    Ronald Grinblat, appellant, argued the cause pro se.

                    Andrew G. Toulas argued the cause for respondents
                    (Harwood Lloyd, LLC, attorneys; Andrew G. Toulas,
                    of counsel; Paul E. Kiel, on the brief).

PER CURIAM
      Plaintiff Ronald Grinblat appeals from an August 4, 2017 order dismissing

his complaint with prejudice in accordance with Rule 4:23-5(a)(2). We affirm.

      By way of background, plaintiff filed a personal injury action against

defendants Robert B. Simon and Elizabeth M. Simon. Defense counsel served

discovery on plaintiff who was then, and still is, self-represented. The discovery

propounded by defendants included Form A Interrogatories, Supplemental

Interrogatories, a Notice to Produce, and a Demand for Admissions.

      Because plaintiff failed to respond to these discovery requests, defendants

filed a motion to dismiss plaintiff's complaint without prejudice in accordance

with Rule 4:23-5(a)(1). Plaintiff did not oppose defendant's motion, and the

motion was granted on March 31, 2017.

      Defendant served the March 31, 2017 order on plaintiff by regular and

certified mail. 1 On July 19, 2017, because plaintiff did not provide the

outstanding discovery or move to reinstate his complaint, defendants moved to

dismiss the complaint with prejudice in accordance with Rule 4:23-5(a)(2).

Plaintiff filed opposition to this motion, confirming he received the required




1
  Plaintiff does not deny receipt of defendants' motion to dismiss or the order
dismissing his complaint without prejudice.
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notices preceding defendants' application for dismissal with prejudice of his

pleading.

      In opposing the dismissal with prejudice of his complaint, plaintiff argued

defendants' motions were defective. The motion judge, in a written statement

of reasons, rejected plaintiff's arguments and granted the motion to dismiss the

complaint with prejudice. The judge determined plaintiff did not provide fully

responsive discovery within the sixty-day period following the dismissal

without prejudice, and failed to show exceptional circumstances to excuse his

failure to provide outstanding discovery. The judge acknowledged plaintiff

claimed to have provided discovery prior to the March 31, 2017 order. However,

the judge found plaintiff "provide[d] no documentation of serving discovery."

Even as of the return date of the motion to dismiss the complaint with prejudice,

plaintiff had not provided a copy of his discovery responses to defense counsel

or the court. The judge also explained plaintiff cited "no external factors that

would have substantially interfered with [plaintiff's] ability to fulfill his

discovery obligations."

      On appeal, plaintiff asserts the same arguments presented to the motion

judge.   Plaintiff argues the judge erred in dismissing his complaint with

prejudice because defendants' dismissal motions were defective.


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      We review the dismissal of plaintiff's complaint against defendants for an

abuse of discretion. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc.,  139 N.J. 499, 517

(1995). Generally, we "defer to a trial judge's discovery rulings absent an abuse

of discretion or a judge's misunderstanding or misapplication of the law."

Capital Health Sys., Inc. v. Horizon Healthcare Servs., Inc.,  230 N.J. 73, 79–80

(2017).

      In accordance with Rule 4:23-5(a)(2), plaintiff appeared before the court

on August 4, 2017 to argue why his claims should not be dismissed with

prejudice. The judge afforded plaintiff an opportunity to prove he provided

complete responses to defendants' discovery demands. Alternatively, plaintiff

was given a chance to explain any exceptional circumstances to avoid dismissal

of his complaint with finality.

      There is no evidence plaintiff responded to discovery as propounded by

defendants.   Plaintiff's certification in opposition to defendants' motion to

dismiss with prejudice stated he "provided defendants' attorney . . . with two

HIPPA forms, medical information, pictures taken at the scene and an incident

report." Plaintiff also told the judge during oral argument that he believed

defense counsel already had the information.




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      Plaintiff never certified he provided answers to interrogatories, produced

all documents responsive to defendants' notice to produce, or responded to

defendants' request for admissions. Nor did plaintiff offer any explanation to

excuse his non-compliance with discovery. Plaintiff cannot selectively respond

to duly served discovery requests.

      Having reviewed the record, we are satisfied the judge did not abuse his

discretion based on plaintiff's failure to provide the requested discovery or

explain why he was unable to do so. Plaintiff was aware of his discovery

deficiencies upon receipt of defendants' motions to dismiss his complaint and

failed to cure those discovery delinquencies or otherwise respond prior to his

mandatory appearance before the court on August 4, 2017.

      Affirmed.




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